Monday Round-up

Posted Mon, November 23rd, 2009 9:42 am by Adam Schlossman

In the Wall Street Journal, Anne Tergesen discusses both the recent rise in age-discrimination claims and the Supreme Court's recent decision in Gross v. FBL Financial Services Inc. (2009), which requires plaintiffs alleging age discrimination to establish that their age was the sole cause of the employer's actions. However, last month Congress introduced new legislation that would override the Supreme Court decision by requiring plaintiffs to prove only that age was "one factor behind an employment decision."

At the WSJ Law Blog, Ashby Jones has a brief profile of Michael Carvin and Noel J. Francisco, who represent the petitioners in Free Enterprise Fund v. PCAOB (oral argument scheduled for Dec. 7), the challenge to the constitutionality of part of the Sarbanes-Oxley Act. BusinessWeek also profiles Carvin and Francisco.

At PrawfsBlawg, Bill Araiza revisits the issues in Citizens United and the prospect that the Court will overrule its earlier decision in Austin v. Michigan Chamber of Commerce. Araiza wonders whether the Court in its decision, will explicitly address the recent controversy at the U.S. Chamber of Commerce, where several members are quitting in protest over the Chamber's speech on global warming.

In the National Law Journal, Tony Mauro describes the similarities between the recent "Balloon Boy" incident in Colorado and the pending Supreme Court case, Padilla v. Kentucky. As different as they are, Mauro writes, both are "casting new light" on "when, whether, and how defendants should be informed about the collateral consequences of pleading or being found guilty."

An op-ed in the L.A. Times by Jeffrey Kayes discusses the possibility that Homeland Security Secretary Janet Napolitano may weigh in on the Arizona statute at issue in United States Chamber of Commerce v. Candelaria, in which the Court has called for the views of the Solicitor General. The statute "“ which Napolitano signed into law as Arizona's governor in 2007 "“ imposes harsh penalties on employers who hire illegal immigrants.

Nathaniel Persily, guest-posting on both Balkanization and Volokh, presents the results of a recent survey, which he (and others) designed to measure opinion on constitutional questions, including interpretive methodology and the appropriateness of empathy in Supreme Court decision-making.

At Concurring Opinions, Michael Zimmer analyzes the Supreme Court's decision last Term in Ricci v. DeStefano and then follows up with a separate article regarding the interaction of "disparate treatment and impact discrimination" before and after the Ricci decision.

At Balkinization, Barry Friedman responds to Linda Greenhouse's article over the weekend in the New York Times' Opinionator. In particular, Friedman challenges (what he interprets as) Greenhouse's hope that Justice Sonia Sotomayor will incorporate her personal experiences more strongly into her jurisprudence.

In its first installment of "Predictions of the 10th Justice," FantasySCOTUS.net (and Above the Law) discusses predictions regarding the outcome of Citizens United, which was argued in early September.

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 16, 2018

Blatt, Hasenmiller, Leibsker & Moore, LLC v. Oliva (1) Whether good faith reliance on controlling circuit precedent, prior to any retroactive change in that law, is an unintentional “bona fide error” and a procedure “reasonably adapted to avoid error” within the meaning of the “bona fide error” defense in the Fair Debt Collection Practices Act, 15 U.S.C. § 1692k(c); and (2) whether the due process clause prohibits punishment for conduct that was lawful when committed, but later prohibited by a retroactive change of law.

All Nippon Airways v. Wortman (1) Whether the filed-rate doctrine—which the Supreme Court firmly established in Keogh v. Chicago & Northwest Railway Co. and reaffirmed in Square D Co. v. Niagara Frontier Tariff Bureau, Inc.—still applies where rates are filed with a federal agency pursuant to a statutory regulatory scheme (as held by the U.S. Courts of Appeals for the 1st, 2nd, and 7th Circuits), or whether it no longer applies to such rates if a court finds the agency lacks sufficient “practical ability” to regulate those rates (as held by the U.S. Court of Appeals for the 9th Circuit below); and (2) whether, and to what extent, the filed-rate doctrine applies where a federal agency retains regulatory authority over rates, but chooses to exercise that authority by establishing a regulatory system, which it periodically revisits and revises, that does not require each rate to be literally filed with the agency.

Gonzalez-Badillo v. United States Whether, upon obtaining general consent to search a bag or other area, law enforcement may, consistent with the Fourth Amendment, “pry open” or otherwise cause intentional damages to personal property found within that might reasonably hold the object of the search.

Pioneer Centres Holding Company Stock Ownership Plan and Its Trustees v. Alerus Financial, N.A. Whether a plaintiff bears the full burden of establishing loss causation under 29 U.S.C. § 1109(a), which allows an employee plan to recover for “any losses to the plan resulting from [a fiduciary's] breach of its duties” under ERISA, as the U.S. Courts of Appeals for the 6th, 9th, 10th, and 11th Circuits have held, or whether the burden shifts to the fiduciary to establish the absence of loss causation once the beneficiary makes a prima facie case by establishing breach of fiduciary duty and associated loss, as the U.S. Courts of Appeals for the 2nd, 4th, 5th, and 8th Circuits have held.

Starr International Company, Inc. v. United States Whether a private party with Article III standing may be barred from asserting constitutional claims for money damages against the federal government because of the equitable doctrine of “third-party prudential standing.”